| Moray v City of Yonkers |
| 2010 NY Slip Op 06412 [76 AD3d 618] |
| August 17, 2010 |
| Appellate Division, Second Department |
| Angela Moray, Appellant, v City of Yonkers et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Darius P.Chafizadeh of counsel), for respondent City of Yonkers. Katz & Rychik, P.C., New York, N.Y. (Abe M. Rychik and Andrew N. Fluger of counsel),for respondent Ahmed Hakki.
Motion by the appellant, in effect, to amend a decision and order of this Court dated April13, 2010, which determined appeals from two orders of the Supreme Court, Westchester County,dated March 5, 2009, and June 9, 2009, respectively.
Upon the papers filed in support of the motion and no papers having been filed in oppositionor in relation thereto, it is
Ordered that the motion is granted, and the decision and order of this Court dated April 13,2010 (Moray v City of Yonkers, 72AD3d 766 [2010]), is recalled and vacated, and the following decision and order issubstituted therefor:
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from(1) an order of the Supreme Court, Westchester County (Smith, J.), dated March 5, 2009, which,in effect, granted that branch of the motion of the defendant Ahmed Hakki pursuant to CPLR3126 which was to dismiss the complaint to the extent of "precluding the plaintiff from seekingrecovery for emotional damages" and (2) an order of the same court dated June 9, 2009, whichgranted her motion to settle the transcript of the proceedings held in the above-entitled action onDecember 31, 2008.
Ordered that the appeal from the order dated June 9, 2009, is dismissed, as the plaintiff is notaggrieved by that order; and it is further,
Ordered that the order dated March 5, 2009, is reversed, on the facts and in the [*2]exercise of discretion, and that branch of the motion of thedefendant Ahmed Hakki pursuant to CPLR 3126 which was to dismiss the complaint to theextent of "precluding the plaintiff from seeking recovery for emotional damages" is denied; andit is further,
Ordered that one bill of costs is awarded to the plaintiff.
The drastic remedy of striking a pleading or dismissal pursuant to CPLR 3126 for failure tocomply with court-ordered disclosure should be granted only where the conduct of the resistingparty is shown to be willful and contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d808 [2009]; Mei Yan Zhang vSantana, 52 AD3d 484, 485 [2008]; Xina v City of New York, 13 AD3d 440, 441 [2004]; Frias vFortini, 240 AD2d 467 [1997]). The record does not support the dismissal of the complaintto the extent of "precluding the plaintiff from seeking recovery for emotional damages" pursuantto CPLR 3126, as there was no evidence of willful or contumacious conduct in connection withthe plaintiff's failure to authorize the release of the records at issue (see Simpson v City of New York, 10AD3d 601, 602-603 [2004]; Lerner v Knot, 201 AD2d 466 [1994]). Skelos, J.P.,Santucci, Lott and Sgroi, JJ., concur.